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2018 DIGILAW 46 (KER)

Navas v. Abdul Lathief

2018-01-12

B.SUDHEENDRA KUMAR

body2018
ORDER B. Sudheendra Kumar, J. 1. The petitioner is the accused and the first respondent is the complainant in C.C. No.659 of 2013 on the files of the court below. 2. The first respondent herein filed a complaint against the petitioner before the court below alleging offence under S.138 of the Negotiable Instruments Act. 3. During the cross-examination of PW1, the petitioner wanted to mark an agreement winch was alleged to have been executed by the parties. However, the court below did not permit the said document to be marked stating that the said document was only a photocopy. The petitioner filed C.M.P.No.728/2017 praying for permitting the petitioner to mark the said document as secondary evidence through 3W1, if PW1 was not prepared to produce the original of the said document. The court below dismissed the said petition. Aggrieved by the order of the court below dismissing C.M.P.No.728 of 2017, this Crl.M.C. has been filed. 4. Heard the learned counsel for the petitioner, the learned counsel for the first respondent and the learned Public Prosecutor. 5. The document sought to be marked before the court below has been produced before this court for my perusal by the learned counsel for the petitioner. The said document is a photocopy having the original signature of both the parties. 6. Now the question to be considered is as to whether the said document can be admitted in evidence as primary evidence or secondary evidence. 7. At this juncture, it is profitable to understand S.62 of the Evidence Act, which reads thus:- "62. Primary evidence.-Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document; Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original". 8. The first part of Explanation 1 to S.62 refers to what is known as duplicate, triplicate or the like. 8. The first part of Explanation 1 to S.62 refers to what is known as duplicate, triplicate or the like. The expressions "executed in parts" refer to the method in which documents are executed. It is convenient sometimes that each party to a transaction should have a complete document in his own possession. To effect this, the document is written as many times as there are parties and each document is executed, signed or sealed by all the parties. Then any one of them may be produced as primary evidence of the contents of the document. When an instrument is executed in duplicate or triplicate or the like and each party keeps one, each instrument is treated as original and hence each is primary evidence of all the others. 9. Sometimes an agreement is prepared in two parts, of which one is the original and the other one is the photocopy. If both the parties sign the original as well as the photo copy of the agreement after comparing the photocopy with the original then the photocopy of the agreement signed by the parties is primary evidence of the original agreement. Thus, it is clear that if any document is executed in two or more parts and the executants sign in all the parts, then, each part is primary evidence of the contents of the other part. 10. The original of the agreement in this case was signed by both the parties and the photocopy of the agreement was also signed by both the parties after comparing the same with the original, submitted by the learned counsel for the petitioner. If that be so, the photocopy of the agreement signed by both the parties is primary evidence of the original of the document signed by both the parties in view of Explanation 1 to S.62 of the Evidence Act. In view of the above reason, the above said document can be proved as primary evidence. Therefore, Annexure-A5 order cannot be sustained and consequently, I set aside the same. The petitioner shall be at liberty to induct the above said document into evidence as primary evidence before the court below. In the result, this Crl.M.C. stands allowed as above.